Appeal No.	EAT/1180/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 May 2000
Judgment delivered on 8 June 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR P R A JACQUES CBE
MISS D WHITTINGHAM

MRS I BARKER	APPELLANT

WESTBRIDGE INTERNATIONAL LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS CRASNOW
(of Counsel)
Nottingham Law Centre
19 Radford Road
Hyson Green
Nottingham
NG7 5DU	
For the Respondents	MR CADOO
(Representative)
First Assist Group Ltd
Marshalls Court
Marshalls Road
Sutton
Surrey
SM1 4DU	

	JUDGE PETER CLARK:	

1.	The appellant, Mrs Barker, commenced her employment with the respondent, Westbridge International Ltd, in April 1966. At all relevant times she was employed as Senior Office Manageress. She was born on 25th August 1944. 

2.	She suffered from epilepsy. On 6th August 1997 she had an epileptic fit and fell, suffering a fracture of the right hip. The fracture was pinned. She went off work, her absence being certificated.

3.	Whilst she was away from work the respondent reallocated her duties. They found that they could manage without her.

4.	On 1st October 1997 the Nottingham Law Centre wrote to the respondent on behalf of the appellant in connection with her holiday pay arrangements. In that letter they sought an assurance from the respondent that “when the medical profession confirm that our client may return to work that she may do so immediately even at that stage if she requires the assistance of crutches, a wheelchair or some form of aid for mobility.”

5.	Following receipt of that letter the respondent caused a risk assessment to be carried out by their Health and Safety Officer, Mr Chenery. His assessment, dated 8th October 1997, identified possible risks from the respondent’s premises to anyone not of normal mobility.

6.	On the same day that that report was received by the respondent, 8th October, they wrote to the appellant informing her that her duties had been “readily and efficiently absorbed by other members of staff” and thus her post was redundant. Full consultation with her was to follow.

7.	On 23rd October 1997 a meeting took place between the appellant and Messrs Silk and Moxon of the respondent. On legal advice she declined to say anything. The respondent explained that her duties had been absorbed by other members of staff and the requirement for employees had reduced in consequence. The respondent was unable to identify an alternative position for the appellant, other than that filled by Nichola Stacey, an employee junior to the appellant and on a lower salary.

8.	The meeting ended with the respondent expecting a reaction from the appellant or her legal adviser. None came and on 7th November 1997 the respondent served notice of termination of the appellant’s employment. She was not required to attend work during the notice period, which expired on 5th February 1998. During that period the appellant exercised her right of internal appeal against her dismissal. Her appeal was heard by Mr Rubins, the Chairman of the respondent, on 3rd December 1997. At the close of that hearing the appellant mentioned, for the first time, an allegation of disability discrimination.

9.	Mr Rubins wrote to the appellant on 10th December 1997 dismissing her appeal. In that letter he said this, in relation to her suggestion of disability discrimination:

“6.	Redundant because of being disabled. This was a parting comment by you and something which I found quite amazing. Neither I nor anyone else in the management are aware that you are disabled. We know of course that you have been temporarily incapacitated due to your accident, but it was our understanding that you are on the mend and intended returning to work in the near future. It was for that very reason that Mr Silk wrote to you as there was no position for you to return to.”

10.	During the notice period the appellant presented an Originating Application to the Nottingham Employment Tribunal on 5th January 1998, complaining of unfair dismissal and disability discrimination. That claim was resisted and came on for hearing before a tribunal chaired by Mr J B C Blood on 28th April, 26th and 29th June 1998, followed by a meeting in Chambers for deliberation on 13th July 1998. By a reserved decision promulgated with extended reasons on 4th August 1998 the tribunal dismissed both complaints. They found that the appellant was fairly dismissed by reason of redundancy. As to the complaint of disability discrimination they found that the appellant was not disabled within the meaning of s.1 of the Disability Discrimination Act 1995 [‘DDA’]. 

11.	At paragraph 4(i) of their reasons they directed themselves as to the law. Having set out s.5(1) of the Act they considered s.1 (definition of disability) in conjunction with Schedule 1 paragraph 2(1) (meaning of “long term”) and 4(1) (impairment affecting a person’s ability to carry out normal day-to-day activities, by reference to mobility).

12.	They summarised their understanding of the law in this way:

“The Applicant must satisfy the Tribunal that she is disabled as defined in the DDA. The question of whether an impairment is long term must be viewed as at the date of the alleged discrimination, (in this case, on or about 7 November 1997 when the decision to dismiss the Applicant was promulgated to her). Likewise the extent of the Respondent’s knowledge of the impairment must be viewed as at that date. Hindsight cannot be applied. If the Applicant fails to satisfy the Tribunal that she is disabled as defined in DDA that is an end of the claim. If she satisfies that requirement she must then satisfy the requirements of S 5 (1) (a) DDA. If she satisfied that requirement the onus is then on the Respondent to show that the treatment is justified under S 5 (1) (b).”

13.	There is no reference by the tribunal in their reasons to the Code of Practice and Guidance issued by the Secretary of State on 25th July 1996. Nor is there any reference to discrimination under s.5(2) DDA (by failure to comply with the employer’s duty under s.6 of the Act to make reasonable adjustments, etc.)

14.	The tribunal express their conclusions on the DDA claim at paragraph 6(i) of their reasons in this way:

“Disability Discrimination. At the time of the Applicant’s letter of dismissal there was no evidence that the impairment was “long term”. On that basis the Applicant has not satisfied us that she was disabled within the meaning of the DDA. It follows that the Respondent could not have discriminated against her contrary to Section 5 of the DDA. We are unanimous in dismissing the complaint under the DDA.”

15.	Against both the finding that she was fairly dismissed and that her complaint of disability discrimination failed the appellant appealed by a Notice dated 11th September 1998.

16.	The appeal came on for ex parte preliminary hearing before a differently constituted division on which I sat on 19th May 1999. On that occasion we dismissed the appeal against the finding of fair dismissal but allowed the appeal against the tribunal’s finding on disability discrimination to proceed to a full inter partes hearing. It is that part of the appeal which is now before this division for determination.

Disability

17.	The appellant’s claim under DDA failed at the first hurdle on the ground that the appellant was not disabled within the meaning of the Act. In reaching that conclusion the tribunal directed themselves, first, that in determining whether the appellant’s impairment was long term, that question must be viewed as at the date of the alleged discriminatory act, which they took to be the date on which the appellant was given notice of dismissal, 7th November 1997. Secondly, that it is necessary to consider the state of the respondent’s knowledge of the appellant’s impairment and its effect at that date. Hindsight cannot be applied. The tribunal concluded that as at that date there was no evidence that the impairment was “long term”. Accordingly, her claim under DDA failed.

18.	S.1 DDA required the tribunal in this case to examine four questions:

(1)	Does the appellant have a physical impairment? If so,
(2)	does that impairment affect her ability to carry out normal day-to-day activities? If so,
(3)	is the adverse effect substantial? If so,
(4)	is the adverse effect long term?

19.	The tribunal expressly answered questions (1) and (2) in the affirmative. Although not expressly dealt with in the tribunal’s reasons, it is common ground in the appeal that the tribunal also accepted that the adverse effect was substantial. That leaves only the “long term” question.

Long term disability

20.	For present purposes the relevant definition of long term is to be found in paragraph 2(1)(b) of Schedule 1 to DDA – an impairment is long term if (b) the period for which it lasts is likely to be at least 12 months.

21.	Paragraph 8 of Annex 1 to the Code of Practice states:

“Effects which are not long-term would therefore include loss of mobility due to a broken limb which is likely to heal within 12 months …”

22.	As to the meaning of ‘likely’ the Guidance provides:

“B7	It is likely that an event will happen if it more probable than not that it will happen.
B8	In assessing the likelihood of an effect lasting for any period, account should be taken of the total period for which the effect exists. This includes any time before the point when the discriminatory behaviour occurred as well as time afterwards. Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual ( for example, general state of health, age).”

23.	Discrimination occurs if, for a reason which relates to a disabled person’s disability, the employer treats the complaint less favourably than he treats or would treat others to whom that reason does not or would not apply, subject to the defence of justification (s.5(1)) and in dismissing her or subjecting her to any other detriment that discrimination is unlawful (s.4(2)(d)).

24.	In these circumstances the following issues arise for consideration in this appeal:

(1)	When did the alleged unlawful discriminatory act take place?

(2)	As at that date, how far, if at all, is it necessary for the appellant to show knowledge on the part of the respondent that she is disabled and in particular, that the substantial adverse effect of her impairment is long term?

(3)	In determining the long term question is it permissible for the tribunal to take into account evidence of events which post-date the alleged discriminatory act?

23.	We shall deal with each issue in turn.

(1)	The alleged discriminatory act
	It was and is the appellant’s case that in dismissing her the respondent unlawfully discriminated against her by reason of her disability.

	The tribunal took the date of dismissal to be the date on which notice of termination was given by the respondent, 7th November 1997. Ms Crasnow submits that that is wrong as a matter of law. By analogy with the law of unfair dismissal the dismissal takes place at the expiry of the notice period, here 5th February 1998, not when notice was given. Mr Cadoo does not contest that proposition. We agree with Ms Crasnow. Accordingly we find that the tribunal fell into error in taking, as the date of the alleged discriminatory act, 7th November 1997 rather than 5th February 1998.

(2)	The respondent’s knowledge
	Ms Crasnow submits that in determining whether the appellant was disabled within the meaning of s.1 DDA the respondent’s knowledge as to her disability at the date of the alleged discriminatory act is irrelevant. It is for the tribunal to determine on all the evidence whether the appellant was in fact disabled at that date.

	In order to consider that submission it is necessary to review some of authorities. One of the early DDA cases in the EAT was O’Neill v Symm & Co Ltd (Kirkwood J presiding) [1998] IRLR 233. There, the appellant commenced employment with the respondent as an accounts clerk in September 1996. She said at interview that she had taken two months off work in April/May 1996 because she had viral pneumonia; however, the respondent understood that she had recovered and was fit for work. In October 1996 she was off work for five days and provided a self-certificate referring to a viral illness. She then went off work in November, explaining that she had been signed off work on ground that she had a viral illness as a result of her earlier bout of pneumonia. On 3rd December she was summarily dismissed, whilst still off work, on grounds of her absences.

	The appellant contended that at the date of her dismissal the respondent was aware that she had been diagnosed as suffering from “ME/chronic fatigue syndrome(CFS)”. That was denied by the respondent.

	The tribunal accepted that the appellant was suffering from a disability, in that ME/CFS was an impairment that had a long term adverse effect on her ability to carry out normal day-to-day activities. However, they went on to consider whether, at the time of dismissal, the respondent knew or could reasonably be expected to know of her disability. They answered that question in the negative and concluded that the claim for disability discrimination under ss.5(1)(a) and 4(2)(d) failed. The reason for the respondent’s action, dismissal, must be based on a set of facts known to the respondent at the time. An employer cannot be said to have dismissed the appellant by reason of disability if he could not be expected to be aware of the fact of her disability. That reasoning was upheld by the EAT.

	O’Neill has since been the subject of some criticism. We believe that leave to appeal was granted by the Court of Appeal in that case, but for procedural reasons that further appeal was never determined by the Court.

	In H J Heinz Co Ltd v Kenrick [2000] IRLR 144 a division of the EAT presided over by Lindsay P considered O’Neill and declined to follow its reasoning. At paragraphs 21-27 Lindsay P held that an employer’s knowledge of the complainant’s disability is not a material consideration for the tribunal in deciding the objective question as to whether the necessary relationship between the treatment complained of and the disability is made out.

	A majority of us accept the reasoning in Heinz in preference to that in O’Neill. However, those cases were concerned with the question of the employer’s knowledge at the s.5(1)(a) discrimination stage; a fortiori, we think, the employer’s knowledge that the complainant is suffering from a disability is irrelevant at that s.1 stage; was the complainant suffering from a disability? We would uphold Ms Crasnow’s submission on this second issue.

	The minority member, Miss Whittingham, takes a different view. She focuses on the word “likely” in the definition of “long term” in paragraph 2(1)(b) of Schedule 1 to DDA. The word likely imports foreseeability, and that must be the foreseeability of the respondent. Thus the tribunal was correct to conclude that the respondent’s knowledge at the date of dismissal that the appellant was likely to suffer the adverse effect of the impairment for at least 12 months was the relevant question. Although she agrees that the date of dismissal was 5th February 1998 and not 7th November 1997, as the tribunal thought, she does not consider, on the evidence before the tribunal, that the position is thereby made any different. The tribunal were entitled to conclude that the respondent did not know and could not reasonably be expected to know that, at the 5th February 1998, the appellant’s impairment was likely to last for at least 12 months.

(3)	Hindsight
	Again we are divided.

	Miss Whittingham considers that since the question of disability depends in part on the state of knowledge of the respondent as at the date of the dismissal, what happened after dismissal is irrelevant to the determination of that question.

	The majority of us take a different view. We shall follow the reasoning contained in my judgment in Greenwood v British Airways PLC [1999] IRLR 600, paragraphs 37-38, 41. In our judgment the tribunal ought to have considered all the evidence before them at the hearing in determining whether, at 5th February 1998, it was likely that the adverse effect of the impairment would last for at least 12 months from 7th August 1997. That, we think, is the effect of paragraph B8 of the Guidance which the tribunal failed to take into account.

	At the hearing, held in April and June 1998, we are told that the appellant attended in a wheelchair. Medical evidence before the tribunal, which they excluded from consideration as a result of their self-direction that the respondent’s knowledge should be judged and judged as at 7th November 1997, included a medical report from the appellant’s general practitioner, Dr Lewis, dated 27th April 1998. That report, addressed to the appellant’s legal adviser, reads as follows:

“I confirm that Mrs Barker suffered a very severe fracture to her right neck of femur. This occurred on the 6th August 1997. She required surgery to the fracture involving internal fixation. The fracture has been slow to heal but is making reasonable progress at the moment.
However, I feel that she is unlikely to be fully recovered from her injury for at least another 6-9 months.”

	On that uncontroverted medical evidence the adverse effect of the appellant’s impairment was likely to last for more than 12 months. It was “long term”.

Conclusion

24.	It follows that, by a majority, we allow this appeal and substitute the finding that the appellant was suffering from a disability within the meaning of s.1 DDA.

25.	Ms Crasnow asks us to remit the disability discrimination complaint to a fresh Employment Tribunal for rehearing. However, she asks us to remit the case having declared not only that the appellant is disabled, but further that she has been unlawfully discriminated against contrary to ss.5(1)(a) and 4(2)(d) of the Act, applying the approach of the Court of Appeal in Clark v Novacold [1999] IRLR 318. We are not prepared to make that finding. It seems to us that the original tribunal terminated their enquiry at the stage where they found that the appellant was not disabled. There are insufficient findings of fact on the s. 5(1)(a) issue to allow us to reach a firm conclusion as to whether or not the appellant has made out her claim of less favourable treatment by reason of her disability.

26.	Mr Cadoo invites us to hold that the case ought not to be remitted for rehearing on the disability discrimination complaint for this reason. He submits that since the original tribunal found that the appellant had been fairly dismissed by reason of redundancy, a decision not interfered with on appeal, it must follow that the respondent will succeed in making out the defence of justification under s.5(1)(b) DDA, even if the appellant succeeds in showing less favourable treatment under s.5(1)(a).

27.	We reject that submission also. In Heinz the EAT held that the Employment Tribunal fell into error by concluding that a disability-related dismissal which could not be justified was automatically unfair (per Lindsay P paragraphs 5-9). The unfair dismissal and disability discrimination statutory regimes raise quite different questions. We respectfully agree with that approach and consider that the converse is also true; the fact that a dismissal is fair under the Employment Rights Act 1996 does not preclude a finding of unlawful disability discrimination under DDA. A separate enquiry must be carried out under each ground of complaint. See British Sugar PLC v Kirker [1998] IRLR 627, paragraphs 32-35.

28.	Finally, Ms Crasnow invites us to direct that on remission the new Employment Tribunal considers not only a claim of disability discrimination under s. 5(1), but also under s. 5(2). We shall not give that direction. It seems to us, both from the Originating Application and the structure of the original Employment Tribunal decision, that the appellant’s case was put on the basis of s. 5(1) less favourable treatment, that treatment being dismissal only and not a failure by the respondent to carry out reasonable adjustments. If the appellant now wishes to advance an alternative case under s.5(2) the proper course is to seek permission from the Employment Tribunal to amend her Originating Application to add that separate cause of action.

Order

29.	By a majority the appeal is allowed in part. The Employment Tribunal finding of fair dismissal stands. We shall substitute a declaration that the appellant was disabled within the meaning of s.1 DDA. The question as to whether she suffered less favourable treatment by reason of her disability and if so, whether that treatment can be shown by the respondent to be justified, will be remitted to a fresh Employment Tribunal for rehearing. The further question as to whether the appellant will be permitted to raise an alternative argument under s. 5(2) DDA will be a matter for direction by the Employment Tribunal.